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UNITED STATES v. LATTIMORE

January 18, 1955

UNITED STATES of America, Plaintiff,
v.
Owen LATTIMORE, Defendant



The opinion of the court was delivered by: YOUNGDAHL

Owen Lattimore was indicted October 7, 1954, on two counts of perjury allegedly committed before the Senate Internal Security Subcommittee on or about February 27, 1952. *fn1"

The first count charges that Lattimore perjured himself when he denied that he was a 'follower of the Communist line.' *fn2" It avers that in his positions and policies as to political, diplomatic, military, economic and social matters, there can be found expressed in his statements and writings from 1935 to 1950, several hundred instances in which he followed the Communist line, meaning that he:

 '* * * followed in time, conformed to, complied with and paralleled the positions taken, the policies expressed and propaganda issued on the same matters by the Government of the Soviet Union, the Communist Party of the Soviet Union, the Comintern and its successors, the various Communist governments, parties and persons adhering to Communism and accepting the leadership of the Soviet Communist Party.' (Count I, paragraph 5).

 The second count charges that Lattimore perjured himself when he testified he had never been a 'promoter of Communist interests.' *fn3" Such a person is defined as one who:

 Defendant moved to dismiss the indictment, *fn4" alleging that each of the two counts violate both the First and Sixth Amendments to the United States Constitution. The Court's holding that both counts should be dismissed on the ground of vagueness renders unnecessary a determination of their constitutionality under the First Amendment.

 However, when the charge in an indictment is in the area of the First Amendment, evidencing possible conflict with its guarantees of free thought, belief and expression, and when such indictment is challenged as being vague and indefinite, the Court will uphold it only after subjecting its legal sufficiency to exacting scrutiny. *fn5"

 In upholding the dismissal of the first count in the prior indictment Judge Prettyman, speaking for the Court of Appeals, aptly stated,

 'Not only is it a basic rule that 'Criminal statutes must have an ascertainable standard of guilt or they fall for vagueness', but it is equally well established that an indictment must charge an offense with such reasonable certainty that the accused can make his defense. The cases on the point are myriad, as reference to any authority quickly reveals.' *fn8"

 Testing the two counts against this principle, the Court is satisfied that they fail to meet the prescribed standard of definiteness and so must fall for vagueness.

 Perjury, as presently charged to defendant under 18 U.S.C. ยง 1621, occurs when a person under oath '* * * willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true * * *'. *fn9" The substance of such crime is a defendant's lack of belief in the truth of his testimony as of the moment he made it. For a jury to conclude that perjury has been committed, in fact, it must determine what the words meant to the defendant at the time he offered them as his testimony, and then conclude that the defendant did not at that time believe in the truth of such testimony according to the meaning he ascribed to the words and phrases he used. *fn10"

 Under Count I, perjury is charged to the statement by Lattimore that he was not a follower of the Communist line. The Government supplies a definition of this phrase in the indictment. The Government is prompt to concede that no such definition was presented to the defendant at the Committee hearing in 1952; that it was formulated after Lattimore testified; that it was prepared after independent research conducted by the United States Attorney's Office. *fn11" The sources of such research, however, do not appear. The Government contends that it is a matter of common knowledge as to what is meant by 'follower of the Communist line' and that people differ but little in their under standing of the term; *fn12" that it is not a minimal requirement of following the Communist line to zig and zag with it, *fn13" since it does not always zigzag; *fn14" and that the Communist line means the Soviet Communist line and all other organizations that followed the Soviet line. *fn15" The Government claims a right to prove, by men who are familiar with the common usage of the phrase and by documents of defendant's, that the definition found in the indictment was the same definition which Lattimore had in mind when he testified; *fn16" that the jury should be left to determine what is the Communist line, *fn17" what it means to follow such a line, what Lattimore understood as the Communist line, what Lattimore meant by the word 'follow', and lastly, having decided the above, that Lattimore, when he said he was not a follower of the Communist line, did not at that time believe in the truth of such testimony according to the meaning he ascribed to these words. *fn18"

 While the proper test of perjury is subjective, insofar as it is based upon the understanding of the witness himself regarding the words that he used, a criminal prosecution must have certain objective standards. *fn19" Most often in perjury cases the objective standard is not hard to come by; what the accused considered his statements to mean is not in issue since the words or phrases involved have one clear, accepted and recognized meaning. Here, the phrase 'follower of the Communist line' is subject to varying interpretations. It has no universally accepted definition. The Government has defined it in one way and seeks to impute its definition to the defendant. Defendant has declined to adopt it, offering a definition of his own. It would not ...


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